Murray v. State

• Decision Date: 14 December 1982
• Docket Number: No. 182S36,182S36
• Citation: 442 N.E.2d 1012
• Parties: Martin D. MURRAY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1012

442 N.E.2d 1012

Martin D. MURRAY, Appellant, v. STATE of Indiana, Appellee.

No. 182S36.

Supreme Court of Indiana.

Dec. 14, 1982.

John D. Boren, Boren & Oliver, Martinsville, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant, Martin D. Murray, was convicted of Murder, Ind.Code Sec. 35-42-1-1 (Burns Repl.1979), Burglary, Ind.Code Sec. 35-43-2-1 (Burns Repl.1979), and Theft, Ind.Code Sec. 35-43-4-2(a) (Burns Supp.1982), at the conclusion of a jury trial in the Morgan Superior Court on May 16, 1981. Defendant was sentenced to sixty (60) years for murder, twenty (20) years for burglary, and four (4) years for theft, all sentences to be served consecutively. He now appeals.

Defendant Murray raises four issues on appeal concerning: 1) whether the trial court erred in failing to dismiss the action because of alleged violations of the discovery order; 2) whether the trial court erred in overruling the Motion to Correct Errors in regard to alleged prosecutorial misconduct; 3) whether defendant was denied adequate assistance of counsel; and, 4) whether the trial court erred in giving Instruction No. 8.

The record reveals that Harry D. Mowrey was found dead in his home about noon on October 15, 1980. Mowrey's vehicle was missing and the glass had been broken out of the kitchen door of his home. The telephone wires in the home had been cut and it was later determined that a collection of old coins was missing. A hammer, which had traces of human blood on it, was found in the victim's kitchen. It was the pathologist's opinion, after having performed an autopsy, that the head wounds which caused the victim's death had probably been inflicted with a hammer. During the evening of October 14, 1980, defendant Murray was in the company of two of his friends, Greg Maddle and Jeff Piersall, and had a .22 caliber gun in his possession at that time. Defendant indicated to these two friends that he was going to Mooresville to rob "some place." Prior to this time, Defendant had asked his brother, William Charles Murray, III, who had formerly lived in the upstairs apartment of the victim's house, about the possibility of burglarizing the victim's house in Mooresville. On October 14, Defendant broke into the victim's house, was surprised by the victim's presence and mortally wounded him by striking him in the head with a hammer and then stole old coins from the house. Around midnight on the same night, Defendant stopped in Indianapolis at the residence of his aunt, Patricia Whitaker, and told her that he had a hat, some money, and a car, and he was leaving. The victim's automobile was found burning near a Florida highway and Defendant and a hitchhiker were apprehended near the vehicle by the Florida State Police. The hitchhiker told police that the defendant had driven erratically, at high speed, and had nervously checked the road behind him. Defendant had stopped in Tipton, Georgia, to sell old coins to pay for gasoline. He had told the hitchhiker that he might be wanted for murder for hitting an old man with a hammer. The coin dealer was able to give a description of Defendant and the hitchhiker but was unable to pick out Defendant from a photographic lineup. A jail-mate of Defendant in the Morgan County Jail testified that Defendant told him a story very similar to the one which Defendant had told the hitchhiker.

I

Defendant contends there were eight instances where the State failed to provide evidence to the defendant pursuant to discovery orders, the cumulative effect of which denied Defendant a fair trial. The conduct of discovery, of course, is within the discretion of the trial court and the trial court has wide discretionary latitude in discovery matters as a part of its inherent power to guide and control the proceedings. Spears v. State, (1980) Ind., 401 N.E.2d 331, 339; Johns v. State, (1968) 251 Ind. 172, 179, 240 N.E.2d 60, 64. The trial court's discovery order here was phrased in general terms. The prosecutor's duty to disclose is measured by whether the evidence in his possession is so "obviously exculpatory" that failure to turn it over denied Defendant a fair trial. United States v. Agurs, (1976) 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342, 351; Richard v. State, (1978) 209 Ind. 607, 614, 382 N.E.2d 899, 904, cert. denied, 440 U.S. 965, 99 S.Ct. 1515, 59 L.Ed.2d 781. All parties agreed that several instances of late discovery occurred at the trial. There was explanation for these late revelations since in some cases, the evidence was not available until that time. The court found in several instances which the defense counsel agreed to, that there was no purposeful and deliberate failure or refusal of the State to come forward with discoverable items. Furthermore, if properly discoverable evidence is revealed for the first time at trial, the defendant has two remedies: one, to move for a continuance, or two, to move for exclusion of the evidence. Reid v. State, (1978) 267 Ind. 555, 372 N.E.2d 1149. The evidence is excludable when the trial court finds that the State has blatantly and deliberately refused to comply with the court's discovery order. Sparks v. State, (1979) Ind., 393 N.E.2d 151, 153; Reid, supra; Johnson v. State, (1979) Ind.App., 384 N.E.2d 1035, 1038. The imposition of sanctions for failure to comply with discovery orders are discretionary and not mandatory. Rowley v. State, (1979) Ind., 394 N.E.2d 928, 930; Popplewell v. State, (1978) 269 Ind. 323, 327-28, 381 N.E.2d 79, 82. Absent clear error the trial court's determination on violations and sanctions should not be overturned. Reid, supra. Every error of the trial court does not require that the case be reversed; only when error has caused prejudice to Defendant is there cause to reverse. Smith v. State, (1982) Ind., 432 N.E.2d 1363, 1368.

Defendant points to error in the evidence introduced at trial through the testimony of Ed Charters, the Indiana State Police laboratory technician, who processed the scene of the crime. Charters' testimony revealed that a fingerprint found on a piece of broken glass from the victim's kitchen door did not match either the defendant's or the victim's prints. He further testified that he had misplaced the fingerprint information within his file and had relocated it only a week before the trial and notified the deputy prosecutor of its existence on the day of his testimony. The court ruled that there being no evidence of bad faith, the defense motion to dismiss should be denied because there was no showing that the item had been deliberately withheld by the State and no showing that Defendant had been prejudiced to the extent that required dismissal of the charges.

During the cross-examination testimony of the Chief Deputy of Mooresville, Marshall Ditton, both the deputy prosecutor and defense counsel first learned of the possibility that State's witness, William Charles Murray, III, had given a second statement to police. Both then moved for a continuance in order to locate the tape and defense also moved to dismiss. The tape was located and transcribed and witness Ditton was later recalled so that defense counsel could again cross-examine him about the contents of the second tape. Again there was no showing of deliberate bad faith on the part of the deputy prosecutor nor any showing of prejudice to the defendant in regard to this exhibit or in cross-examination of the witness regarding it.

Defendant next alleges that the State did not disclose the existence of autopsy photographs taken by Ed Charters and Dr. Harley Palmer, pathologist. Defense counsel admitted to having seen the autopsy photographs and, further, did not object to the admission of the photographs at trial. This constitutes a waiver on appeal, preserving nothing for review. Suggs v. State, Ind., 428 N.E.2d 226, 229; McCraney v. State, (1981) Ind., 425 N.E.2d 151, 153; Stubblefield v. State, (1979) Ind., 386 N.E.2d 665, 667.

Defendant next alleges the State failed to disclose to the defense that Jim Burt, of Tipton, Georgia, the coin dealer who purchased the stolen coins from Defendant, could not pick Defendant out of a photographic lineup. Mr. Burt was able to describe Defendant but could not absolutely identify him. The evidence did come up in the trial and defense counsel learned of it the day before cross-examination of the witness. Defense did not move for a continuance nor did he move to exclude the evidence. Reid, supra.

William Kuhn, forensic serologist with the Indiana State Police, testified to the results of a blood grouping test. Neither defense counsel nor deputy prosecutor Craney had written results of the test since it had been run only six days before trial. Both defense counsel and the prosecutor, however, were aware of the results and the witness obtained copies of the written report for the parties before resuming his testimony. Again defense counsel did not move for a continuance or to exclude this evidence; in addition, defense counsel has failed to establish any prejudice or intentional bad faith by the State.

Defendant alleges error on grounds the State did not disclose the names of two young women, Cindy Silas Simpson and Janice Finchum, to the defense. It appears these two persons were known to police officers during their investigation but they were determined by police to be "dry" leads as they produced no probative evidence. The prosecutor indicated, however, that the name of Simpson was disclosed on the State's discovery compliance filed on April 15, 1981. Since the lead had not turned up information the State considered probative, neither of the witnesses was called by the State at trial. The State contended it did furnish the name of Simpson and felt the disclosure of Finchum was not necessary since it was nothing more than police investigatory notes and could not be considered...